841 F.

2d 429
10 Fed.R.Serv.3d 357, 24 Fed. R. Evid. Serv. 778

Lorraine Ann MESCHINO, etc., et al., Plaintiffs, Appellants,

v.
NORTH AMERICAN DRAGER, INC., d/b/a N.A.D., Inc., et
al.,
Defendants, Appellees.
No. 87-1777.

United States Court of Appeals,

First Circuit.
Heard Jan. 7, 1988.
Decided Feb. 9, 1988.
Rehearing Denied March 11, 1988.

David J. Oliveira, Peter Lawson Kennedy, Adler Pollock & Sheehan Inc.,
Alfred Factor and Kirshenbaum & Kirshenbaum, Providence, R.I., on
brief, for appellants.
Craig M. Walker, with whom Klaus H. Jander, Donald M. Dunn, Joseph
T. Cardany, Walter, Conston, Alexander & Green, P.C., New York City,
Andrew R. Grainger, P.C. and Peabody & Brown, Boston, Mass., were on
brief, for appellee N.A.D., Inc.
Robert P. Powers, with whom Jeffrey C. Melick, Joseph P. Musacchio and
Melick & Porter, Boston, Mass., were on brief, for appellee Boehringer
Laboratories, Inc.
Joseph L. Doherty, Jr., with whom John C. DeSimone and Martin,
Magnuson, McCarthy & Kenney, Boston, Mass., were on brief, for
appellee Bay State Anesthesia, Inc.
Before BOWNES, ALDRICH and TORRUELLA, Circuit Judges.
BAILEY ALDRICH, Senior Circuit Judge.

Plaintiff Lorraine Ann Meschino,1 while totally anesthetized on the operating

table for a surgical procedure, suffered an episode of cardiac arrest due to an
insufficient oxygen supply, resulting in damage to her brain. One immediate
cause of the oxygen deficiency was defendant registered anesthetic nurse
Woitkowski's insertion of a so-called "PEEP" valve manufactured by defendant
Boehringer Laboratories, Inc. into the supply side of plaintiff's ventilation
circuit instead of into the exhaust side.2 This was but one of a number of serious
errors by her, and by defendant anesthesiologist, Dr. Fleet, who, jointly with
her, will sometimes be referred to as the medical defendants. The medical
defendants settled out during trial, and the trial continued as against
Boehringer, North America Drager, Inc., hereinafter NAD, the maker of the
anesthesia machine, hereinafter Narkomed 2, and Bay State Anesthesia, Inc., its
supplier to the Lahey Clinic, where plaintiff's operation was performed. Lahey
Clinic, originally named as a defendant, had received a voluntary dismissal.
The remaining issues were the corporate defendants' alleged faults, and whether
the medical defendants' faults were, in effect, exculpatory, viz., superseding
cause. The court directed a verdict in favor of Bay State at the end of plaintiff's
case, and ultimately the jury answered special questions favorably to the other
two defendants. Plaintiff complains as to these results, and to the court's rulings
on evidence in a number of particulars. We affirm in part and reverse in part.
We start with liability. The special questions answered by the jury were as
follows.

SPECIAL VERDICT FORM

3 Do you find that any of the doctors, nurses, or technicians, including either Dr.
1.
Shelly Fleet or Nurse Nancy Woitkoski [sic], were negligent on October 14, 1983 in
the treatment of the plaintiff, Lorraine Anne Meschino?
ANSWER: YES NO
4If the answer to Question # 1 is Yes proceed to Question # 2.
5If the answer to Question # 1 is No proceed to Question # 3.
6 Was the negligence of the doctors, nurses or technicians, including either Dr. Fleet
2.
or Nurse Woitkoski [sic], the sole cause of Lorraine Meschino's injury?
ANSWER: YES NO
7If the answer to Question # 2 is No proceed to Question # 3.
8If the answer to Question # 2 is Yes proceed no further and report to the Court that

you have reached a verdict.

9

There followed eleven questions dealing principally with individual alleged

faults of NAD with regard to the machine, and Boehringer with respect to the
PEEP valve, which, pursuant to the form's instructions, were not reached.

10

While Questions 1 and 2 might, perhaps, have been differently worded,

examination of the questions following, addressed to defendants' individual
alleged faults, as well as examination of the charge itself, satisfies us that, by
their given answers, the jury had concluded that defendants were free of fault.3
To read the questions otherwise would, moreover, have made superfluous the
unanswered Question 13, addressed to superseding cause. It follows that
plaintiff's extensive argument that the court erred in submitting, and charging
upon, superseding cause as an alternative defense, terminating, so to speak,
defendants' faults, is irrelevant. If defendants were free of fault, there was
nothing for them to be relieved from. We proceed, accordingly, to those matters
which allegedly improperly damaged plaintiff's attempts to obtain a favorable
answer to Question 2.

11

The complaint most stressed, made in a number of ways, is based on the

ultimate fact that plaintiff failed to afford the jury a view of the actual
Narkomed 2 machine involved, which was still in use (unchanged) at the Lahey
Clinic, or of a duplicate, to aid in its understanding, and weighing, her
criticisms, as advanced by her expert.

12

The Narkomed 2 machine is a comprehensive device which, using a single

tube, introduces controlled amounts of anesthesia and oxygen and then
exhausts the patient's lungs, completing the ventilation cycle. The patient's own
breathing may accomplish the cycle, or it may be forced automatically, or by
manual activation. In certain circumstances a PEEP valve, a check valve
limiting flow to one direction, must be inserted in the exhalation line to
maintain pressure in the lungs. Plaintiff's care prior to surgery had required and
employed such a valve. Because she had not researched plaintiff's history, Dr.
Fleet had failed to have a PEEP valve immediately at hand, and began
administration of anesthesia while one was being sent for. Fifteen minutes
before incision, she left instructions with Woitkowski to install the PEEP valve
on its arrival, and returned to her office. The valve arrived prior to incision, but
Woitkowski neglected to install it. Upon incision, the surgeon noticed that
plaintiff's blood was darkened, indicating inadequate oxygenation. A remark by
a surgical resident that plaintiff had been under PEEP before the procedure
reminded Woitkowski of the need for the valve, and she thereupon installed it,
inexplicably in the wrong line. The effect of this on the patient was noticed

rather quickly, but the source of the breathing impediment was not discovered
until Dr. Fleet returned to the operating room in response to an emergency page.
13

Plaintiff abandoned her complaint that the inhalation side, and exhalation side,
of the machine were not adequately marked, but she contended as to another
improper marking, and that there was no warning device which would have
revealed that the oxygen supply had been cut off.

14

Without pausing to examine the alleged errors that had prevented plaintiff from
presenting a Narkomed 2 to the jury, we start with the bottom line, the court's
response to counsel's statement that it "would be helpful." The court said,

15

Frankly, counsel, I think that the diagrams, the photographs, the testimony, has
all been very clear and very direct, almost simplistic, if I may use that term.

16

Spelling this out, the jury had before it a number of photographs and diagrams,
some of which were explained even at the jury rail, and which also were blown
up by transparencies. Nor can we resist pointing out that plaintiff had been
permitted to make a video tape of the instant machine, and had not even offered
it. It is difficult to think how the statement in plaintiff's brief, "a view was the
only means available to Lori [Mrs. Meschino] to permit the jury to understand
the operation of the Narkomed 2" can have been made in good faith. Under the
circumstances, we may wonder whether plaintiff's real interest was not the
machine, but the contention that she sought to present to the jury that she had
been frustrated by defendants' successful efforts "to conceal the truth,"--a claim
now made several times in her brief.

17

Seeking to persuade the court to present this issue to the jury, plaintiff offered a
memorandum of law in support of a motion, but no affidavit or other form of
evidence. The facts so alleged were these. Plaintiff's expert, Dr. Allen was
apparently able to procure for plaintiff, from his own hospital, a Narkomed 2
machine substantially similar to the one used in plaintiff's operation. As a
condition thereof, however, the hospital demanded that plaintiff procure the
purchase of a replacement machine, and this plaintiff was prepared to do.
Apparently the replacement was to be an updated version, a Narkomed 2A, of
the model in question. Plaintiff claimed that when it was learned for what
purpose Dr. Allen sought to buy a Narkomed 2A, defendants NAD and Bay
State in bad faith thwarted the purchase, thus preventing the release of the
relevant Narkomed 2 machine for proffer at trial.

18

Plaintiff has cited to us cases authorizing an unfavorable inference when a party

procures the suppression of relevant evidence within its control. The facts here
were somewhat different. Defendants had control of a replacement Narkomed
2A machine, which itself would not have been relevant. No one contended that
they had control over a relevant Narkomed 2 machine, the predecessor model
apparently being out of production. Plaintiff contends that by suppression of the
sale of the replacement machine, defendants denied her access to evidence
which was, as a practical matter, as much subject to defendants' control as if
they had owned it. These contentions, if true, would have presented the trial
court with an interesting variant of the question resolved in the decided cases.
19

It is unnecessary to decide whether plaintiff was entitled to an instruction. Her

motion, as to which she bore the burden, addressed a highly factual matter of
her expert's thwarted efforts to purchase a machine. She provided the trial court
with no evidence (although she sought to examine defendant's personnel
thereon) to support her motion, even though an affidavit of her own expert
ought to have been easily had. Under the circumstances, there was neither a
factual basis for allowance of her motion as a whole, nor for a jury instruction,
in whatever form presented.

20

But even if plaintiff had adequately presented her claim, this is not a case of an
obvious unfavorable inference once intentional concealment had been
established. Would a presentation of the machine have demonstrated the "truth"
beyond what was already apparent from the detailed photographs and
diagrams? For example, in response to plaintiff's claim that there should have
been an alarm specially directed to indicating an obstruction of the inhalation
gases, defendants' expert witnesses pointed out several visible, and audible,
consequences that should have alerted a trained operator without the need of a
separate alarm. In her brief plaintiff argues that with the machine the jury might
have seen the "absurdity" of these contentions. If plaintiff's witnesses had
testified to absurdity, and needed the machine to demonstrate this, that would
have been one thing. They testified to the need of an alarm, but not to need of a
physical demonstration, much less to absurdity. What plaintiff may have lost
was not "truth," but an opportunity for counsel's arguments to play upon an
impressionable lay audience, unable to gauge. Defendants might well be
apprehensive that possible adverse confusion, rather than truth could result
from a presentation of the actual machine. 4 The court might well not wish to
engage in a mini-trial, and its sympathy with plaintiff, who had had three years
to prepare, and even had a video tape which she did not use, was obviously
minimal. We are not tempted to overrule its discretion.

21

Plaintiff further objects to the court's exclusion of two articles published in

Health Devices Magazine. She sought to introduce a December 1985 article

entitled "PEEP Valves" against Boehringer, and a July 1981 article entitled
"Ventilation Alarms" against NAD. The basic question was qualification under
Fed.R.Evid. 803(18), whether the article had been "established as a reliable
authority." With respect to Boehringer, plaintiff did not even get off the ground.
Passing the question of its sufficiency, the testimony on which she relied had
been given by her expert, a Dr. Raemer, two days before in connection with
another article, and was expressly limited to NAD. No do we accept plaintiff's
contention of admissibility to impeach the witness then on the stand regardless
of whether it had been qualified under the rule. Fed.R.Evid. 803, advisory
committee's notes, Exception (18).
22

We add that in any event we would not accept plaintiff's argument that the
contents of all issues of a periodical may be qualified wholesale under Rule
803(18) by testimony that the magazine was highly regarded. In these days of
quantified research, and pressure to publish, an article does not reach the
dignity of a "reliable authority" merely because some editor, even a most
reputable one, sees fit to circulate it. Physicians engaged in research may write
dozens of papers during a lifetime. Mere publication cannot make them
automatically reliable authority. The price of escape from cross-examination is
a higher standard than "qualified," set for live witnesses who do not. The words
have a serious meaning, such as recognition of the authoritive stature of the
writer, or affirmative acceptance of the article itself in the profession. For this
reason we concur in the exclusion of the "Ventilation Alarms" article against
NAD. Furthermore, as to NAD, plaintiff may not rely on Dr. Raemer's
testimony to predicate error on the part of the court; his testimony was never
brought to its attention as providing a foundation for the "Ventilation Alarms"
article.

23

Plaintiff further contends that NAD may not object to the introduction of this
article because "NAD had admitted the authoritative nature of the article for
purposes of its use at trial by listing it as a proposed trial exhibit." We do not
equate the listing of an exhibit on a pre-trial submission with a binding
response to a request for admission under Fed.R.Civ.P. 36. The comparison is
ill-founded; by listing the name of a witness in a pre-trial document, a
proponent does not waive the right to impeach that very witness, or, indeed, to
conclude not to call him. The contention is without merit.

24

Plaintiff also contends that she was denied the opportunity to lay a foundation
for "Ventilation Alarms" through the cross-examination testimony of one of
NAD's experts. Strictly this was not cross-examination, but was making the
witness hers, pro tanto. Plaintiff concedes that the witness characterized the
article as "spotty," and does not contest that the testimony on the record falls

short of a foundation as authoritative. She complains that the court based its
ruling on the characterization as "spotty" and then excluded a further question
seeking to elicit a more favorable answer from the witness.
25

Upon exclusion of the question at issue, counsel proceeded immediately to

another line of inquiry. Plaintiff made no offer of proof, nor does she now argue
that she had any basis (in deposition testimony or otherwise) to expect that an
opponent's witness would recant his unfavorable testimony so as to provide a
foundation for the article. Inasmuch as the court's attention was directed to no
grounds for reconsideration of its exclusion of plaintiff's renewed questioning,
the ruling must stand. It was tantamount to a ruling that the question at issue
had been asked and answered, and such rulings will not be disturbed in the
absence of an abuse of discretion. Harrington v. United States, 504 F.2d 1306
(1st Cir.1974). None has been shown.

26

Finally, we turn to Bay State, whose motion for a directed verdict was granted
at the close of plaintiff's case. The court, having denied NAD's motion as a
result of rejecting its claim that plaintiff had failed to show a breach of
warranty, correspondingly rejected Bay State's claim. However, it ruled in
favor of Bay State on the ground that plaintiff had failed to prove that Bay State
had been the seller of the machine.

27

With the greatest respect, we find this incomprehensible. To begin with, in

support of its motion Bay State argued,They have to demonstrate that Bay State
sold that machine.... They have to introduce some evidence because the jury
has nothing right now in front of them to suggest that Bay State was, in fact, the
distributor.... There wasn't a darned thing to show the element of a sale here.
And that is absolutely necessary.... Plaintiffs never took time to address the
issue of a sale.... They were busy. They had their hands full. They're trying to
prove a medical case, trying to prove a case against two other product people.

28

I was the fortunate beneficiary of that, your Honor, because they just forgot that
element of their case; but I am saying that, fortunate or unfortunate beneficiary,
I am still entitled to it right now.

29

Plaintiff responded that the fact that Bay State had sold the system to the Lahey
Clinic was alleged in the complaint, and admitted in the answer. To this Bay
State replied that this had not been brought to the jury's attention.

30

THE COURT: I might agree with you, Mr. Doherty [counsel for Bay State].
The jury doesn't know that.... All the plaintiff says is: Well, they admit it in

their answer and, therefore, it is deemed admitted. I don't believe that is the
case. It might be.
31

The discussion then turned, we might say mirabile dictu, to consideration of the
principles of judicial notice, and to the claim that, after plaintiff had rested, it
was late in the day. Plaintiff suggested reopening, so that the jury might be
informed.

32

THE COURT: Why should I do that? Poor Mr. Doherty's been sitting back
there saying to himself, "I am going to lawyer this case the best way I know
how." Now you want to take away the fruit of his victory.

33

The matter was then adjourned to the following morning for reflection, at
which time plaintiff expanded her argument on the subject of judicial notice,
citing Fed.R.Evid. 201(f) and cases thereunder, and concluding that the
admission of Bay State in its answer was a binding admission which the court
"must instruct the jury to accept ... as conclusive.... I would state the judicial
admissions absolutely eliminate the need for the admission of any evidence....
Bay State's motion should be denied."

34

THE COURT: All right. First, you say that the answers to the complaint,
amended complaint, are admissions. The rule, I think, is otherwise....

35

So I think the gate is closed on Bay State, and I will grant their motion for
directed verdict.

36

"Poor Mr. Doherty" had done an excellent job of "lawyering." And where was
plaintiff? Passing the fact that judicial notice, unlike answers to interrogatories,
depositions, etc., referred to by the court, may be "taken at any time,"
Fed.R.Evid. 201(f), what had become of Fed.R.Civ.P. 8(d)?5 What had become
of the stipulated Pretrial Statement of Issues To Be Tried, which, consistently
with the answer, conspicuously omitted any question of Bay State's sale and
commenced with whether it has breached a warranty?

37

We feel sure that the books could be searched in vain for authority that it is
appropriate to direct a verdict against a plaintiff because she had failed to offer
evidence of something unreservedly admitted in the defendant's answer, or had
not earlier, i.e., before the motion was filed, called the admission to the court's
attention--noting it at the time of argument being too late. We find it hard to
believe that this could have occurred. We add that it seems as unjust as it was
improper.

38

The battle of the wooden soldiers, or more strictly, of the unarmed soldiers,
continues in this court. Bay State's sole argument consists of a single assertion:
"... there is no basis upon which the jury could have found that Bay State sold
the machine to Lahey." No mention is made of Fed.R.Civ.P. 8(d), or of the
stipulated issues. Plaintiff continues to rely on Fed.R.Evid. 201(f) as to judicial
notice, and adds case authority pertinent thereto, but no authority pertinent to
Fed.R.Civ.P. 8(d). Nonetheless, in spite of herself, we must rule that plaintiff is
correct; a verdict should not have been directed contrary to defendant's answer.

39

Alternatively, in this court, as it did below, Bay State argues that plaintiff did
not put in a case on the merits. While we might regard her case as thin, as
confirmed by the jury's finding against a helpless plaintiff, we need not add to
the substantive reasons expressed of record by the court for denying the motion
on this ground. Bay State cannot succeed here.

40

Finally, Bay State contends that since in the matter of warranty,6 it and NAD
were in the same boat (which, of course, is true, see, e.g., Everett v. Bucky
Warren, Inc., 376 Mass. 280, 380 N.E.2d 653, (1978); Killeen v. Harmon Grain
Products, 11 Mass.App. 20, 413 N.E.2d 767 (1980)), plaintiff, having had a full
trial, should be collaterally estopped by the findings and judgment in favor of
NAD. For this it cites B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7 (1st
Cir.1984) seemingly without observing that we there noted that while this is
the general rule,7 Massachusetts adheres to principles of mutuality and, for
collateral estoppel, requires identity of parties. See 727 F.2d 12, n. 2. While
there are, indeed, statements to this effect in some Massachusetts opinions, it is
possible that there are exceptions that B.C.R. Transport failed to realize. The
burden of showing error on our part, however, is on Bay State, and, even had it
been relevant, this burden is not met by its citing one district court case. We
will not do counsel's work for him.

41

By removing itself at the close of plaintiff's case Bay State sought a heads-Iwin, tails-you-lose situation since collateral estoppel, in all probability, would
not work offensively, i.e., plaintiff probably could not, if the directed verdict
were ultimately vacated, use a finding in its favor against Bay State, but Bay
State could, but for the apparent Massachusetts rule, use the finding defensively
if plaintiff lost. Instead, Bay State now finds itself at the dead end of a one-way
street, as it has now been litigated and determined that it cannot use the findings
and judgment in favor of NAD defensively.

42

The judgments for North American Drager, Inc. and Boehringer Laboratories,
Inc. are affirmed; the verdict and judgment in favor of Bay State Anesthesia,
Inc. are vacated and a new trial ordered.8

OPINION ON PETITIONS FOR REHEARING

43

PER CURIAM.

44

Bay State requests reconsideration of our decision that the judgment in NAD's
favor cannot be used defensively by way of collateral estoppel to bar a new trial
against it. Because of the consequences NAD fears for itself by way of a
possible indemnity claim it joins in Bay State's request, by separate petition.
The petitions are denied.

45

In its original brief, in addition to claiming, without a scintilla of supporting

authority, that the admission in its answer was to be ignored, in disregard of
Fed.R.Civ.P. 8(d), Bay State argued that even if the directed verdict was error,
it should succeed on this appeal if NAD succeeded. We recite its brief.

46

II. THE JUDGMENT ENTERED IN FAVOR OF BAY STATE SHOULD BE

UPHELD ON THE BASIS OF THE JURY VERDICT, REGARDLESS OF
WHETHER BAY STATE WAS ENTITLED TO A DIRECT VERDICTEven
if this Court were to determine that Judge Mazzone should not have directed a
verdict in favor of Bay State, the Judgment in favor of Bay State should be
upheld on the basis of the jury verdict in favor of N.A.D. [Footnote omitted] As
discussed previously, the only claim presented by the plaintiffs against Bay
State was for breach of warranty, based upon allegations that the Narkomed 2
machine was defective and that Bay State was a link in the chain of sale from
N.A.D. to the Lahey Clinic. Bay State could not have been found liable unless
the jury determined that the Narkomed 2 machine was defective and that the
defect caused Mrs. Meschino's injuries. Such a determination would have also
resulted in a finding against N.A.D. Indeed, Bay State could not have been
found liable, based upon the claims presented, without N.A.D. also having been
found liable. Consequently, a finding that N.A.D. is not liable necessarily
requires a finding that Bay State is not liable.

47

The verdict returned by the jury upon special questions related only to the issue
of causation. The jury found that the negligence of doctors, nurses or
technicians at the Lahey Clinic was the "sole cause" of the injuries to Mrs.
Meschino.

***
48
***
49
50

The causation question, decided by the jury, was a "common factual issue"

50

The causation question, decided by the jury, was a "common factual issue"
relative to the claims against both N.A.D. and Bay State. B.C.R. Transport Co.,
Inc. v. Fontaine, 727 F.2d 7 (1st Cir., 1984). The issue was "actually litigated"
at trial and was "necessary to the determination" of the claims against N.A.D.
Moreover, the plaintiffs clearly had "substantial control" over the litigation.
Kalman v. Berlyn Corp., 614 F.Supp. 1327, 1330 (D.C.Mass., 1985).
Consequently, unless this Court were to overturn the jury verdict and the
judgment in favor of N.A.D., the plaintiffs are precluded from relitigating the
question of causation against Bay State and the Judgment entered in favor of
Bay State, therefore, must be upheld.

51

In ruling against Bay State we stated,

52

Finally, Bay State contends that since in the matter of warranty [footnote
omitted] it and NAD were in the same boat (which, of course, is true, see, e.g.,
Everett v. Bucky Warren, Inc., 376 Mass. 280, 380 N.E.2d 653, (1978); Killeen
v. Harmon Grain Products, 11 Mass.App. 20, 413 N.E.2d 767 (1980)), plaintiff,
having had a full trial, should be collaterally estopped by the findings and
judgment in favor of NAD. For this it cites B.C.R. Transport Co., Inc. v.
Fontaine, 727 F.2d 7 (1st Cir.1984) seemingly without observing that we there
noted that while this is the general rule, [footnote omitted] Massachusetts
adheres to principles of mutuality and, for collateral estoppel, requires identity
of parties. See 727 F.2d 12, n. 2. While there are, indeed, statements to this
effect in some Massachusetts opinions, it is possible that there are exceptions
that B.C.R. Transport failed to realize. The burden of showing error on our part,
however, is on Bay State, and, even had it been relevant, this burden is not met
by its citing one district court case. We will not do counsel's work for him.

53

In light of the fact that Bay State had obtained its directed verdict by what even
the district court regarded as "lawyering,"1 we saw no reason to come to its
rescue by going behind our single decision which Bay State itself had cited
(B.C.R. Transport ). We said,

54

By removing itself at the close of plaintiff's case Bay State sought a heads-Iwin, tail-you-lose situation since collateral estoppel, in all probability, would
not work offensively, i.e., plaintiff probably could not, if the directed verdict
were ultimately vacated, use a finding in its favor against Bay State, but Bay
State could, but for the apparent Massachusetts rule, use the finding defensively
if plaintiff lost. Instead, Bay State now finds itself at the dead end of a one-way
street, as it has now been litigated and determined that it cannot use the findings
and judgment in favor of NAD defensively.

55

In its petition Bay State asserts that we "misapprehended or overlooked

Massachusetts law concerning the issue of collateral estoppel."

56

Counsel for Bay State apologizes to this Court for the fact that the
misapprehension of Massachusetts law may have been caused by Bay State's
citation of B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7 (1st Cir.1984).
Bay State submits, however, that B.C.R. Transport was cited only in support of
the fact that collateral estoppel applies when there is a "common factual issue"
(Bay State's Brief, p. 25). The case was not cited in relation to any questions of
mutuality or identity of parties, because Bay State did not perceive those
questions as being germane to this action. Based upon the fact that Bay State
was a party to the action throughout the presentation of the plaintiffs' case, as
well as the fact that Massachusetts has not required identity of parties in regard
to the defensive use of collateral estoppel since the 1968 decision in
Homeowners Federal Savings & Loan Association v. Northwestern Fire and
Marine Insurance Co., 354 Mass. 488 , 455 [238 N.E.2d 55] (1968), Bay State
maintains that its failure to perceive or address issues pertaining to mutuality or
identity of parties was not unreasonable and should not preclude consideration
of the question at this time.

57

There then follows an extensive briefing of Massachusetts law going back well
before B.C.R. Transport and suggesting we were there in error.

58

As an apology this is difficult to accept. It was scarcely necessary to cite B.C.R.

Transport--or anything else--to show that there was a "common factual issue."
It is elementary that a "common factual issue" does not stand alone, but, of
necessity, there are additional issues, mutuality (vel non), and identification of
parties. Bay State had merely to read its own citation, B.C.R. Transport, and
see, fully flagged, that we had held that the Massachusetts law was against it.

59

In Massachusetts, collateral estoppel requires the concurrence of three

circumstances: "(1) a common factual issue; (2) a prior determination of that
issue in litigation between the same parties; and (3) a showing that the
determination was in favor of the party seeking to raise the estoppel bar."
Commonwealth v. Lopez, [383 Mass. 497] 420 N.E.2d at 321 [ (1981) ]
(emphasis added). Thus, on the second of these three criteria alone--mutuality
of estoppel--Fontaine's claim of collateral estoppel/fails. [Footnote omitted]
(727 F.2d at 12)

60

Bay State errs when it says we "misapprehended." We used the phrase

"apparent Massachusetts Rule" precisely in order to disclose that we were

making no final pronouncement.2 Nor did we "over look" anything. Rather, we

pointed out that we did not "look". What Bay State, in spite of its verbiage, is
now asking is that we overlook what we can only regard as gross negligence on
its part in raising a point and citing nothing but one case, a case that
conspicuously spoke against its position. We do not accept its explanation that
we made a "demonstrable mistake," as to the Massachusetts law and that it was
"not unreasonable" for it not to have briefed it because the law in defendant's
favor "came to its judicial repose in ... 1968."
61

Rather than a mistake, we quoted our previous opinion which, in turn, had
quoted a Massachusetts opinion verbatim. Common. v. Lopez, 383 Mass. at
499, 420 N.E.2d 319 (1981) (sic). We refrained from saying whether this was
correct, and expressly refrained from pursuing the matter. We are bound by our
previous decisions unless they can be shown clearly incorrect; Bay State's own
citation made obvious what it should have done for itself. This is a busy court,
and many times, in order to avoid making bad law we are obliged to
supplement work of unperceptive or ineffective counsel. This time we chose not
to do counsel's work, and merely noted that we were making no authoritative
finding.

62

We proceed to the next point. NAD, by its separate petition, states that it has
standing to object to a new trial for plaintiff against Bay State because, if Bay
State loses, then Bay State will come after it, seeking indemnity. Accordingly,
it has standing to prevent the possibility of its ultimately becoming the bagholder. At the same time, it says, we should deny plaintiff the opportunity to
try a second time against Bay State because, due to the law of collateral
estoppel, "a retrial can produce but one result, to wit, a judgment in favor of
Bay State."3

63

Whatever problems there may be in connection with the first point, 4 there are
none in the second. Bay State chose to litigate the issue of collateral estoppel
and lost. Both it and plaintiffs are parties hereto, and the matter is res judicata.

64

We have little sympathy for Bay State's predicament. This is a matter of

principle; too often we find ourselves obliged to do counsel's work. Nor should
counsel expect it who engage in "lawyering," and then want another chance
when it is they that are in trouble.

65

At first blush we might feel differently about NAD. But then, again, we read
NAD's nine page present argument, citing 12 Massachusetts cases, and wonder
why they are tendered only now. Footnote 4 to its petition supplies the answer.

66

This may be an explanation, but it is hardly an excuse. Even less was the
statement "at p. 12 of its brief."

67

NAD respectfully defers to Boehringer and Bay State with respect to the two
issues applicable only to them and herein incorporates by reference their
responses thereto. (Emphasis supplied).

68

Was NAD so unastute as to think collateral estoppel did not concern it, too (a
conclusion it vigorously now denies)? If so, why "incorporate" Bay State's
argument? Either NAD woke up late in the game, or it was content to rest on
the quite inadequate argument made by Bay State. Either way, it has no one to
blame but itself.

69

These are, we believe, competent counsel; they represent substantial clients,

and, money-wise, the case is important. They are entitled to our handling what
is presented to us once. We do not care to entertain a petition for rehearing on
the ground that we made a demonstrable mistake, when the demonstration was
clearly up to the parties and they did not choose to make it.

70

While this is not as clear a case as Rodriguez de Quinonez v. Perez, 596 F.2d
486 (1st Cir.1979), where we denied a petition for rehearing based on the
ground that petitioner-appellant had cited the wrong statute, we said, at page
492,

71

"We find it an intolerable imposition on our time and limited resources to grant
a rehearing for the purpose of entertaining arguments addressed to that hitherto
undisclosed statute."

72

It is more difficult for us to look up Puerto Rico statutes than Massachusetts

cases, but the principle is the same: we must have a right to expect
professionalism from the bar.

73

The petitions for rehearing are denied.

Her husband and children, co-plaintiffs, will not be referred to

PEEP is an acronym for "positive end expiratory pressure", and a PEEP valve
is never intended to be used on the inhalation side. The two sides are plainly
marked (although initially plaintiff claimed it could have been plainer), all of

which Woitkowski testified she well knew. She was unable to account for how
she could have made the mistake
3

Possible exposure of the corporate defendants commenced with the attachment

of the PEEP valve, and these defendants argued that plaintiff's injury had
already occurred, due to negligence of the medical defendants, in which event
the acts of corporate defendants could not have been a cause. If the jury's
answers meant this, it would not affect this opinion, except to make some of it
superfluous

The writer has seen a simple patent diagram become almost incomprehensible,
and "highly ingenious," and hence inventive, when a device that incorporated it
was introduced in specie

"(d) Effect of Failure to Deny. Averments in a pleading to which a responsive

pleading is required, other than those as to the amount of damage, are admitted
when not denied in the responsive pleading."

Plaintiff did not charge Bay State with negligence

See, e.g., Brown v. R.D. Werner, 428 F.2d 375 (1st Cir.1970) (N.H. law)

Since this reversal is on a purely technical ground, it is suggested that this is a

case that might be an exception to the local district rule calling for a redrawing, the complications of the case on the merits indicating advantages in
its remaining with the same judge

Bay State's position was that it was immaterial that plaintiff "simply forgot."

NAD construes this "as an invitation to set forth the correct state of the
Massachusetts law." It most certainly was not. We know how to issue an
invitation

This ambivalence continues on page 12 of its original brief, post

We do not think it at all clear that Bay State could now pursue a claim for
indemnification against NAD. For one thing, it bowed out of the case where
everything could have been settled at once. Secondly, if the law is that it should
have been able to claim collateral estoppel, it lost that benefit by its own
conduct. There may be other points--we make no suggestion as to the proper
result

[C]ollateral estoppel ... was raised, presented and briefed to the Court by Bay
State in its brief on appeal (Point II commencing at p. 22), and NAD (at p. 12

of its brief) expressly incorporated those arguments by reference. Although the

Court found Bay State's treatment lacking and incomplete, the argument was
made, and it was adopted by NAD. We are sympathetic to the Court's
complaint that it was not adequately supported by counsel in their presentation
of this aspect of the law on appeal. In candor, NAD did not foresee that the
Opinion would reverse as to Bay State and hold, as we prove here erroneously,
that Bay State could not rely upon collateral estoppel. It is now apparent that
the Court's ruling on estoppel could expose NAD to claims based on the very
warranty allegations which it defeated below. (Emphasis supplied)